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Quinn v. The City of New York

Supreme Court of New York, First Department

January 16, 2014

Helen Quinn, Plaintiff-Appellant,
v.
The City of New York, et al., Defendants-Respondents

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Kristin M. Helmers of counsel), for the City of New York, respondent.

Crafa & Sofield, P.C., Rockville Centre (Thomas Sofield of counsel), for River House in Riverdale, Inc., respondent.

Mazzarelli, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.

OPINION

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered May 30, 2013, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

By submitting evidence including the affidavit and attached area survey of its licensed surveyor, defendant River House made a prima facie showing of its entitlement to summary judgment by establishing that plaintiff's accident did not occur on or adjacent to its property ( see Gibbs v Port Auth. of N.Y ., 17 A.D.3d 252, 254, 794 N.Y.S.2d 320 [1st Dept 2005]; Balsam v Delma Eng'g Corp ., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105 [1st Dept 1988], lv dismissed in part, denied in part, 73 N.Y.2d 783, 533 N.E.2d 671, 536 N.Y.S.2d 741 [1988]). Plaintiff's submissions in opposition to River House's motion did not suffice to raise a triable issue of fact that the accident occurred on or adjacent to River House's property.

As against defendant City of New York, plaintiff is restricted to prosecuting her claim based on her original theory that she fell on the sidewalk adjacent to River House's property, and precluded from asserting a new theory, not advanced in her notice of claim, complaint, or bill of particulars, that she fell on or adjacent to another property ( see Johnson v City of New York, 106 A.D.3d 664, 664, 966 N.Y.S.2d 408 [1st Dept 2013]). Since River House is a large, multi-unit condominium, the City is exempt from liability ( see Administrative Code of City of NY § 7-210; Johnson, 106 A.D.3d at 664).


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